Citation Nr: 1022248
Decision Date: 06/15/10 Archive Date: 06/24/10
DOCKET NO. 02-04 977A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to a compensable rating for bilateral hearing
loss on a schedular basis.
2. Entitlement to a compensable rating for bilateral hearing
loss on an extraschedular basis.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Debbie A. Breitbeil, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
November 1967 to April 1971.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision in July 2001 of a Department
of Veterans Affairs (VA) Regional Office (RO).
In October 2003, the Board determined that a referral to the
Under Secretary for Benefits or the Director of the
Compensation and Pension Service for an extraschedular rating
was warranted, and remanded the claim to the RO for
additional development.
As part of the development, the RO referred the case to the
Director of the Compensation and Pension Service for
consideration of an extraschedular rating for the Veteran's
service-connected bilateral hearing loss, and in August 2005
the Director found that an extraschedular rating was not
warranted.
In a decision in June 2006, the Board denied the claim for a
compensable rating for bilateral hearing loss on a schedular
basis and on an extraschedular basis. The Veteran appealed
the Board's decision to the United States Court of Appeals
for Veterans Claims (Court).
In an Order in June 2008, the Court granted a Joint Motion
for an Order Remanding the Board Decision on Appeal of the
parties (the VA Secretary and the Veteran), vacated the
Board's June 2006 decision, and remanded the case back to the
Board pursuant to 38 U.S.C. § 7252(a) for readjudication
consistent with the Motion.
In February 2009, the Board remanded the case to the RO for
additional development. As the requested development has
been completed, no further action is necessary to comply with
the Board's remand directive. Stegall v. West, 11 Vet. App.
268 (1998).
FINDINGS OF FACT
1. Bilateral hearing loss is manifested by auditory acuity
level I in the right ear and auditory acuity level IV in the
left ear in June 2001; auditory acuity level III in both ears
in December 2003; and auditory acuity level II in both ears
in November 2009; there was no demonstration of exceptional
patterns of hearing impairment.
2. The current schedular rating criteria reasonably describe
the Veteran's bilateral hearing loss disability level and
symptomatology, and as the manifestations of the Veteran's
hearing loss is wholly encompassed by the schedular criteria,
its application is not impractical.
CONCLUSIONS OF LAW
1. The criteria for a compensable rating for bilateral
hearing loss on a schedular basis have not been met. 38
U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1,
4.85, 4.86, Diagnostic Code 6100 (2009).
2. The criteria for a compensable rating for bilateral
hearing loss on an extraschedular basis, have not been met.
38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.321
(2009); Thun v. Peake, 22 Vet. App. 111 (2008).
The Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in
part at 38 C.F.R § 3.159, amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of the following: (1)
any information and medical or lay evidence that is necessary
to substantiate the claim, (2) what portion of the
information and evidence VA will obtain, and (3) what portion
of the information and evidence the claimant is to provide.
The notification requirements are referred to as Type One,
Type Two, and Type Three, respectively. Shinseki v. Sanders,
129 S. Ct. 1696 (2009).
Also, the VCAA notice requirements apply to all five elements
of a service connection claim. The five elements are: (1)
veteran status; (2) existence of a disability; (3) a
connection between a veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In a claim for increase, the VCAA requirement is generic
notice, that is, the type of evidence needed to substantiate
the claim, namely, evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on employment. Vazquez-Flores v. Shinseki, 580
F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A.
§ 5103(a) as requiring generic claim-specific notice and
rejecting Veteran-specific notice as to effect on daily life
and as to the assigned or a cross-referenced Diagnostic Code
under which the disability is rated).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided post-adjudication VCAA notice by letters,
dated in November 2003, March 2006, April 2006, and March
2009. The Veteran was notified of the type of evidence
needed to substantiate the claim for a higher rating for his
bilateral hearing loss, namely, evidence to show that the
disability was worse and the effect the disability had on
employment.
The Veteran was also notified that VA would obtain service
records, VA records, and records of other Federal agencies
and that he could submit private medical records or authorize
VA to obtain private medical records on his behalf.
As for content of the VCAA notice, the documents complied
with the specificity requirements of Quartuccio v. Principi,
16 Vet. App. 183 (2002) (identifying evidence to substantiate
a claim and the relative duties of VA and the claimant to
obtain evidence); of Charles v. Principi, 16 Vet. App. 370
(2002) (identifying the document that satisfies VCAA notice);
of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the
elements of the claim); and of Vazquez-Flores v. Shinseki,
580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice,
namely, a worsening or increase in severity of the disability
and the effect that worsening has on employment).
As the VCAA notice came after the initial adjudication, the
timing of the notice did not comply with the requirement that
the notice must precede the adjudication. The procedural
defect was cured as after the RO provided content-complying
VCAA notice the claim was readjudicated, as evidenced by the
supplemental statements of the case, dated in October 2005
and in March 2010. Mayfield v. Nicholson, 499 F.3d 1317
(Fed. Cir. 2007) (Timing error cured by adequate VCAA notice
and subsequent readjudication without resorting to
prejudicial error analysis.).
Duty to Assist
Relevant to its obligation to assist a claimant, VA has also
made reasonable efforts to identify and obtain relevant
records in support of a claim. 38 U.S.C.A. § 5103A (a), (b)
and (c). The Veteran has not identified any available
evidence for consideration in his appeal.
Further, VA has conducted necessary medical inquiry in an
effort to substantiate the claim. 38 U.S.C.A. § 5103A(d).
The Veteran was afforded VA examinations in June 2001,
December 2003, and November 2009. There is no evidence in
the record dated subsequent to the VA examinations that shows
a material change in the condition to warrant a
reexamination. 38 C.F.R. § 3.327(a).
As there is no indication of the existence of additional
evidence to substantiate the claim, no further assistance to
the Veteran is required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Schedular Rating
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
Ratings for hearing loss range from noncompensable to 100
percent and are based on organic impairment of hearing acuity
as measured by the results of controlled speech
discrimination tests, together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies of 1000, 2000, 3000, and 4000 Hertz. To
evaluate the degree of disability from service-connected
hearing loss, the Rating Schedule establishes eleven auditory
acuity levels, ranging from numeric level I for essentially
normal acuity to numeric level XI for profound deafness. 38
C.F.R. § 4.85.
Disability ratings for hearing impairment are derived by the
mechanical application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
The Veteran's bilateral hearing loss is currently rated as
noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100.
The record shows that the Veteran underwent three VA
examinations. At the time of a June 2001 VA examination,
audiometric testing revealed the following pure tone
thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz
of 15, 30, 75, and 95, for an average of 54 in the right ear;
and of 20, 55, 85, and 95, for an average of 64 in the left
ear. Speech recognition scores per Maryland CNC were 92
percent in the right ear and 80 percent in the right ear.
These VA audiometric findings reflect level I auditory acuity
in the right ear and level IV auditory acuity in the left
ear. 38 C.F.R. § 4.85, Table VI. These numeric designations
in combination correspond to a zero percent, or
noncompensable, rating under Table VII, Diagnostic Code 6100.
At the time of a December 2003 VA examination, audiometric
testing revealed the following pure tone thresholds, in
decibels, at 1000, 2000, 3000, and 4000 Hertz of 20, 40, 85,
and 100, for an average of 61 in the right ear; and of 20,
60, 95, and 100, for an average of 69 in the left ear.
Speech recognition scores per Maryland CNC were 84 percent in
each ear. These VA audiometric findings reflect level III
auditory acuity in the right ear and level III auditory
acuity in the left ear. 38 C.F.R. § 4.85, Table VI. These
numeric designations in combination correspond to a zero
percent, or noncompensable, rating under Table VII,
Diagnostic Code 6100.
At the time of a November 2009 VA examination, audiometric
testing revealed the following pure tone thresholds, in
decibels, at 1000, 2000, 3000, and 4000 Hertz of 20, 45, 85,
and 100, for an average of 63 in the right ear; and of 25,
65, 95, and 100, for an average of 71 in the left ear.
Speech recognition scores per Maryland CNC were 92 percent in
each. These VA audiometric findings reflect level II
auditory acuity in the right ear and level II auditory acuity
in the left ear. 38 C.F.R. § 4.85, Table VI. These numeric
designations in combination correspond to a zero percent, or
noncompensable, rating under Table VII, Diagnostic Code 6100.
There are no other audiograms - VA or private - to indicate
that the Veteran's auditory acuity levels were different than
those reflected on the VA examination reports.
Further, the record does not demonstrate an exceptional
pattern of hearing impairment under 38 C.F.R. § 4.86 in
either ear, that is, puretone threshold at 1000, 2000, 3000,
and 4000 Hertz of 55 decibels or more, or puretone threshold
of 30 decibels or less at 1000 Hertz and 70 decibels or more
at 2000 Hertz. 38 C.F.R. § 4.86.
In May 2010, the Veteran's representative argued that the
Veteran's hearing loss more nearly approximated the criteria
under the exceptional patterns of hearing impairment.
Indeed, the left ear hearing loss in November 2009 was shown
to have a pattern that approached the standards for
exceptional. Nevertheless, the puretone thresholds of the
left ear at that time did not meet or exceed the specific
criteria required for there to be an exceptional pattern of
hearing impairment under 38 C.F.R. § 4.86.
The Board has given consideration of whether separate ratings
may be assigned for separate periods of time based on the
facts found ("staged ratings"), particularly here where the
higher rating claim was filed in March 2001 and has been
pending for a lengthy period of time. See Hart v. Mansfield,
21 Vet. App. 505 (2007) (staged ratings are appropriate for
an increased rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings). The
Board concludes that the evidence shows that the Veteran's
bilateral hearing loss disability is appropriately rated as
noncompensable for the entire period considered in this
appeal. In arriving at the determination herein, the Board
has considered all the evidence consistent with the Court's
decision in Hart.
The Board concludes that there have been no clinical findings
to show that the Veteran's bilateral hearing loss meets the
schedular criteria for a compensable rating. As the
preponderance of the evidence is against the claim for a
higher rating, the benefit-of-the-doubt standard of proof
does not apply. 38 U.S.C.A. § 5107(b).
Extraschedular Rating
Ordinarily, VA's Schedule for Rating Disabilities (38 C.F.R.
Part 4) will apply unless there are exceptional or unusual
factors that would render application of the schedule
impractical. See Fisher v. Principi, 4 Vet. App. 57, 60
(1993).
According to the regulation, an extraschedular disability
rating is warranted upon a finding that "the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization that would render
impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1) (2009).
While a higher rating under the pertinent schedular criteria
of Diagnostic Code 6100 is not available for the Veteran's
bilateral hearing loss, as discussed above, the record in
this case does contain evidence that the bilateral hearing
loss disability of the Veteran, who is a former policeman and
a retired U.S. deputy marshal, was the stated reason that he
was denied employment as a court security officer in December
2000. The letter of denial from the U.S. Marshal Service is
the sole item of evidence submitted by the Veteran to
demonstrate the impact of his service-connected hearing loss
on employment.
The Board in its October 2003 decision, based on an
interpretation of the law as then in effect, found that this
evidence was sufficient to establish a marked interference
with employment, rendering impractical impractical the
application of the regular schedular standards.
However, under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the
Board could not make a determination as to an extraschedular
evaluation in the first instance. Thus, the case was
referred to VA's Director of Compensation and Pension Service
for consideration of an extraschedular rating for the
Veteran's bilateral hearing loss disability. The Director
determined in August 2005 that an extraschedular evaluation
for the hearing loss was not warranted.
As the procedural actions outlined in 38 C.F.R. § 3.321(b)(1)
have been completed, namely, referral of the case to VA's
Director of Compensation and Pension Service for
consideration of extraschedular evaluation in the first
instance, the case has been returned to the Board for its
review.
Subsequent to the Board's last consideration of the claim,
and regardless of the Board's prior determination in October
2003, the Court provided clear guidance for determining
whether a veteran is entitled to have his case referred for
an extraschedular rating. Thun v. Peake, 22 Vet. App. 111,
115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366
(Fed. Cir. 2009).
The Court provided a sequential three-step analysis. Step
one, determine whether the schedular rating adequately
contemplates a claimant's disability picture. If the
criteria reasonably describe the claimant's disability level
and symptomatology, then the claimant's disability picture is
contemplated by the rating schedule, the assigned schedular
evaluation is, therefore, adequate, and no referral to the
Under Secretary for Benefits or the Director of the
Compensation and Pension Service for consideration of an
extraschedular rating is required.
If the schedular evaluation does not contemplate the
claimant's level of disability and symptomatology and is
found inadequate, then on step two, determine whether the
claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
governing norms.
If the Veteran's disability picture meets the second step,
then the third step is to refer the case to the Under
Secretary for Benefits or the Director of the Compensation
and Pension Service to determine whether an extraschedular
rating is warranted.
With respect to the first step of Thun, the Board finds that
the evidence in this case does not show such an exceptional
disability picture that the available schedular evaluation
for the service-connected bilateral hearing loss is
inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60
(1993).
The rating criteria reasonably describe the Veteran's
disability level and symptomatology, which is loss of hearing
acuity, measured by audiometric testing, and speech
discrimination ability. The Veteran's disability is
manifested by difficulty hearing. This symptom is
contemplated by the rating schedule, which is based on the
ability to understand spoken words and on hearing acuity at
various decibel levels as shown by objective testing. Thus,
the rating schedule adequately contemplates the Veteran's
disability. In other words, the Veteran does not experience
any symptomatology not already contemplated by the rating
schedule.
In support of his claim for an extraschedular rating, the
Veteran submitted evidence that he was denied a job solely on
the basis of his hearing impairment. It is undisputed that a
service-connected disability can have an adverse effect on
employment, but the schedular rating criteria are designed to
take such factors into account. The schedule is intended to
compensate for average impairment in earning capacity
resulting from a service-connected disability in civil
occupations. 38 U.S.C.A. § 1155.
Generally, the degrees of disability specified in the rating
schedule are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1.
Furthermore, the decibel loss and speech discrimination
ranges designated for each level of hearing impairment in
Tables VI and VIA were chosen in relation to clinical
findings of the impairment experienced by veterans with
certain degrees and types of hearing disability. In support
of this, the Board looks to the regulatory history of 38
C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing
loss were last revised, effective June 10, 1999. See 64 Fed.
Reg. 25206 (May 11, 1999). In the revision process, VA
sought the assistance of the Veteran's Health Administration
(VHA) in developing criteria that contemplated situations in
which a veteran's hearing loss was of such a type that speech
discrimination tests may not reflect the severity of
communicative functioning these veterans experienced or that
was otherwise an extreme handicap in the presence of any
environmental noise, even with the use of hearing aids.
VHA had found through clinical studies of veterans with
hearing loss that when certain patterns of impairment are
present, a speech discrimination test conducted in a quiet
room with amplification of the sounds did not always reflect
the extent of impairment experienced in the ordinary
environment. The decibel threshold requirements for
application of Table VIA were based on the findings and
recommendations of VHA. The intended effect of the revision
was to fairly and accurately assess the hearing disabilities
of veterans as reflected in a real life industrial setting.
59 Fed. Reg. 17295 (April 12, 1994).
Accordingly, the Board finds that functional impairment due
to hearing loss, that is, compounded by background or
environmental noise is a disability picture that is
considered in the current schedular rating criteria.
Therefore, the Veteran's difficulty in hearing is a factor
contemplated in the regulations and rating criteria as
defined. The Veteran was denied a job in December 2000
evidently on the basis of failing to achieve a certain
hearing acuity level, but the hearing thresholds for
obtaining that particular job or the Veteran's own audiology
test results for the job are not known. The simple fact that
the Veteran's hearing disability, as tested at VA under
controlled circumstances and pursuant to standardized
procedures, does not satisfy the numerical criteria for a
compensable rating under VA criteria, to include the criteria
specifically designed for the type of real-world impairment
experienced by the Veteran, does not place his symptomatology
outside of that contemplated by the rating schedule or make
application of the rating schedule impracticable in this
case.
The Veteran's complaints of hearing difficulty, which is at
the root of his disability, have been considered under the
numerical criteria set forth in the rating schedule. And
such consideration has included contemplation of whether his
hearing impairment demonstrates an exceptional pattern, which
it does not. Thus, the schedular rating criteria adequately
contemplate his symptomatology.
As the threshold factor for extraschedular consideration has
not been met, the Board consequently need not reach the
second step as to whether the exceptional disability picture
exhibits other related factors such as those provided by the
regulation as a "governing norm" (e.g., marked interference
with employment and frequent periods of hospitalization). As
such, referral for extraschedular consideration is not
warranted (see also VAOPGCPREC 6-96), and further inquiry
into extraschedular consideration is moot. Thun v. Peake, 22
Vet. App. 111 (2008).
In light of current caselaw, which serves to provide specific
guidance on how to determine whether a matter requires
referral for extraschedular consideration, the Board finds
that the manifestations of the Veteran's hearing loss and
associated impairment (failure to meet hearing loss standards
for a job as a court security officer), are wholly
encompassed by the schedular criteria, and those criteria are
not shown to be inadequate. Thun v. Peake, 22 Vet. App. 111
(2008).
Accordingly, the Board determines that an extraschedular
rating for the Veteran's bilateral hearing loss is not
warranted. 38 C.F.R. § 3.321(b)(1) (2009).
ORDER
A compensable rating for bilateral hearing loss on a
schedular basis is denied.
A compensable rating for bilateral hearing loss on an
extraschedular basis is denied.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs